42. Sultan Azlan Shah
Excerpts from the Opening Address by HRH Sultan Azlan Shah at the 14th Malaysian Law Conference.
We must ever be mindful that written constitutions are mere parchment pieces.
It is important that there must be, in the hearts and minds of those who are entrusted to administer and uphold the constitution, a belief in the values and principles that animate the august document.
I had occasion to observe when sitting in the Federal Court in 1977 that the “constitution is not a mere collection of pious platitudes”. I spoke then of the 3 essential features of our constitution. I said:
“It is the supreme law of the land embodying three basic concepts:
One of them is that the individual has certain fundamental rights upon which not even the power of the state may encroach.
The second is the distribution of sovereign power between the states and the federation,…
The third is that no single man or body shall exercise complete sovereign power, but that it shall be distributed among the executive, legislative and judicial branches of government, compendiously expressed in modern terms that we are a government of laws, not of men.”
In a speech delivered in Kuala Lumpur in April 2004, Lord Woolf spoke of the ‘Rule of Law’,
“The Rule of Law is the rule by the laws that govern a true democracy. They are the laws that provide for a proper balance between the protection of human rights and the interests of the State. Laws which an independent and responsible judiciary can enforce to protect all members of society from abuse of power.”
All countries, including those that are totalitarian regimes, have courts. But as I observed previously:
“The [mere] existence of courts and judges in every ordered society proves nothing; it is their quality, their independence, and their powers that matter.”
In matters concerning the judiciary, it is the public perception of the judiciary that ultimately matters. A judiciary loses its value and service to the community if there is no public confidence in its decision-making.
In this regard the principal quality a judiciary must possess is “impartiality”. Lord Devlin said of “judicial impartiality” that it exists in two senses-the reality of impartiality and the appearance of impartiality. He emphasized that the appearance of impartiality was the more important of the two.
Impartiality also means that judges are not only free from influence of external forces, but also of one another. No judge however senior can dictate to his brethren as to how a decision should be arrived at.
It is of the essence of a judge’s character that he must be a person of unquestionable integrity who brings an unbiased mind to his task. Like Caesar’s wife, he should be above suspicion.
It is said that public confidence in the judiciary is based on four evaluating criteria. They are:
(1) the principle of independence of the judiciary;
(2) the principle of impartiality of adjudication;
(3) the principle of fairness of trial; and
(4) the principle of the integrity of the adjudicator.
How does our judiciary measure today against these criteria?
Sadly I must acknowledge there has been some disquiet about our judiciary over the past few years and in the more recent past. In 2004, I had stated that it grieved me, having been a member of the judiciary, whenever I heard allegations against the judiciary and the erosion of public confidence in the judiciary.
There is no reason why judges with the assured security of tenure they enjoy under the Constitution should not discharge their duties impartially, confidently and competently.
Judges are called upon to be both independent and competent. In these days, judges must ever be mindful that the loss of independence can come from many sources, and not just from the executive. Therefore, judges must piously resist the lure of socializing with business personages and other well connected people. They may discover at their peril that they have compromised themselves in the cases that come before them with the unedifying spectacle of recusal applications.
Nothing destroys more the confidence the general public, or the business community has in the judiciary than the belief that the judge was biased when he decided a case, or that the judge would not be independent where powerful individuals or corporations are the litigants before him.
I should point out that mere cosmetic changes alone would not suffice. If we wish to achieve this goal, it is imperative that major reforms are introduced. Many other countries have taken such steps to establish specialized commercial courts. Recently, the Dubai Commercial Court (where one of our own former Chief Judge has recently been appointed to sit as a judge in this new court), and the Qatar Commercial Court have been established.
I know that judging is an arduous task calling for a good mind and a capacity for hard work. The inevitable consequence of incompetence is delayed judgments and backlog in cases leading to all round dissatisfaction.
As is often said, there are good lawyers and bad lawyers. Whilst the majority of the lawyers discharge their duties as officers of the court with professionalism and dedication, there have been cases of some others who have brought disrepute to the legal profession. There have been allegations against some lawyers that in clear dereliction of their responsibilities, they have either misled the courts, or attempted to choose the judges or courts for their cases to be heard so as to obtain a favourable decision in their client’s favour. This is serious interference with the administration of justice and the process of the court.
I am reminded of the proud accolade of the late Tun Suffian in his Braddel Memorial Lecture in 1982, when speaking of the Malaysian judiciary to a Singapore audience he said:
“ In a multi-racial and multi religious society like yours and mine, while we judges cannot help being Malay or Chinese or Indian; or being Muslim or Buddhist or Hindu or whatever, we strive not to be too identified with any particular race or religion – so that nobody reading our judgement with our name deleted could with confidence identity our race or religion, and so that the various communities, especially minority communities, are assured that we will not allow their rights to be trampled underfoot.”
Read the full text here.
